Leatherwood v. Allbaugh

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 27, 2017

FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
_________________________________ Clerk of Court

MICHAEL DON LEATHERWOOD,

Petitioner - Appellant,

v. No. 16-6251

JOE M. ALLBAUGH, Interim Director,
Oklahoma Department of Corrections,

Respondent - Appellee.
_________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 5:13-CV-01149-HE)
_________________________________

Mark Henricksen, Henricksen & Henricksen, Lawyers, Inc., Oklahoma City, Oklahoma,
appearing for Appellant.

Keeley L. Miller, Assistant Attorney General (E. Scott Pruitt, Attorney General, and
Jennifer B. Welch, Assistant Attorney General, with her on the briefs), Office of the
Attorney General for the State of Oklahoma, Oklahoma City, Oklahoma, appearing for
Appellee.
_________________________________

Before HARTZ, MATHESON, and MORITZ, Circuit Judges.
_________________________________

MATHESON, Circuit Judge.
_________________________________

The district court denied state prisoner Michael Leatherwood’s 28 U.S.C.

§ 2241 habeas application. It granted him a certificate of appealability (“COA”) on
his claim that revocation of his suspended sentence for violation of a probation

condition violated his procedural and substantive due process rights. It denied a

COA on his other claims. Exercising jurisdiction under 28 U.S.C. §§ 1291 and

2253(a), we affirm the district court’s denial of his due process claim. We also deny

his request for additional COAs and his motion to supplement the record.

I. BACKGROUND

A. State Court Proceedings

1. Sentence
In 2009, Mr. Leatherwood pled guilty in Oklahoma state court to two counts of

Rape in the First Degree and four counts of Rape in the First Degree by

Instrumentation. Judge Kenneth Watson sentenced him to six concurrent 20-year

terms and suspended the sentence except for 90 days in jail.

Upon completion of his jail time, Mr. Leatherwood was supposed to serve “the

remainder of [his] sentence(s) . . . under the terms set forth in the probation

guidelines,” including a list of Special Probation Conditions for Sex Offenders

(“Special Probation Conditions”). Record on Appeal (“ROA”) at 1700, 1703. He

would therefore serve a suspended sentence and also be under probationary

supervision. See Okla. Stat. tit. 22 § 991(a)(A)(1).1

1
Okla. Stat. tit. 22 § 991a(A)(1) provides that, after a defendant is convicted
of a crime, courts can “[s]uspend the execution of the sentence in whole or in part,
with or without probation.” In addition, the court may order the defendant “at the
time of sentencing or at any time during the suspended sentence to do one or more”
enumerated actions, id. § 991a(A)(1)(a)-(gg), as well as comply with “any other
provision specifically ordered by the court,” id. § 991a(A)(1)(hh).
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 Mr. Leatherwood agreed to the Special Probation Conditions “as consideration

for the imposition of a probated sentence, in whole or in part” and acknowledged that

“[f]ailure to comply with any of these conditions may result in the revocation . . . of

[his] probated sentence.” ROA at 1703.

One of the Special Probation Conditions, Rule 17, required that Mr.

Leatherwood “[n]ot date, socialize, or enter into a romantic or sexual relationship

with any person who has children under the age of eighteen (18) years present in

their residence or custody at any time.” Id. Judge Watson ordered Mr. Leatherwood

to report to jail on January 8, 2010.

2. First Revocation – Five Years
On September 23, 2009, before the scheduled start of Mr. Leatherwood’s jail

term, the State applied to revoke his suspended sentence, alleging he had violated

several probation conditions. Mr. Leatherwood was put in jail before his revocation

hearing. Judge Watson, who had imposed the original sentence, held a revocation

hearing on January 8, 2010. During the hearing, Mr. Leatherwood’s counsel

stipulated to five of the alleged probation violations, including a violation of Rule 17

based on Mr. Leatherwood’s relationship with Regina Wood, the mother of two

minor children. Judge Watson chastised Mr. Leatherwood for refusing to follow the

rules, stating, “And now they put you in jail and you’re doing the same thing over

there. . . . I gave you all the rope in the world and you hung yourself with it.” Id.

at 891. Judge Watson revoked five years of Mr. Leatherwood’s suspended sentence.

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3. Second Revocation – 15 Years
On April 14, 2010, while Mr. Leatherwood was serving his five-year prison

term,2 the State filed a second application to revoke, alleging Mr. Leatherwood had

continued to violate Rule 17 while he was incarcerated. Judge Watson recused

himself. Judge Tammy Bass-LeSure presided over a second revocation hearing on

August 3, 2010. She noted that despite Judge Watson’s admonitions “not to have any

relationship . . . with a person that has children in their custody,” Mr. Leatherwood

had gone to “great lengths to hide the fact” that he continued his relationship with

Ms. Wood. Id. at 1032-33. Mr. Leatherwood acknowledged that he “would not do

anything to intentionally or willfully violate the conditions of my probation except

for [Rule] 17 and I take responsibility for that.” Id. at 1065. “[L]ooking at the

totality” of the circumstances, including Mr. Leatherwood’s own statements and

deceptive behavior, Judge Bass-LeSure concluded he knew he had violated Rule 17.

Id. at 1033. Consequently, she revoked the remaining 15 years of his suspended

sentence.

4. Direct Appeal and Post-Conviction Review
Mr. Leatherwood appealed to the Oklahoma Court of Criminal Appeals

(“OCCA”), raising three issues that are relevant here: (1) the revocation violated his

procedural and substantive due process rights because (a) Rule 17 failed to warn him

that he could violate it while incarcerated, and (b) the revocation was so arbitrary as

2
Mr. Leatherwood was originally supposed to serve his 90-day jail term in the
Oklahoma County Jail. After his five-year revocation, he was transferred to Lawton
Correctional Facility, a private prison in Oklahoma.
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to be fundamentally unfair; (2) Judge Bass-LeSure’s bias violated due process; and

(3) cumulative error in the second revocation proceeding required reversal. The

OCCA affirmed.

Mr. Leatherwood then sought post-conviction relief, alleging: (1) ineffective

assistance of counsel; (2) judicial bias and conflict;3 and (3) cumulative error. The

state trial court denied relief, and the OCCA affirmed.

B. Federal Habeas Proceedings

In October 2013, Mr. Leatherwood applied for habeas relief under 28 U.S.C.

§ 2241 in the United States District Court for the Western District of Oklahoma. He

asserted seven grounds for relief: (1) violation of due process; (2) insufficient evidence;

(3) improper admission of evidence; (4) judicial bias; (5) judicial conflict; (6) ineffective

assistance of counsel; and (7) cumulative error. As on direct appeal, his first claim

alleged violation of procedural and substantive due process because (1) Rule 17 failed to

warn that he could violate it while incarcerated, and (2) the revocation arbitrarily

deprived him of his liberty. Mr. Leatherwood filed motions to supplement his application

with affidavits from Justin Jones, the former Director of the Oklahoma Department of

Corrections, and from Judge Watson.

The magistrate judge recommended denial of Mr. Leatherwood’s habeas

application. Over Mr. Leatherwood’s objection, the federal district court agreed. It also

3
Mr. Leatherwood added judicial conflict to his judicial bias claim, arguing
that Judge Bass-LeSure was the target of an unrelated investigation conducted by the
same district attorney’s (“D.A.”) office that had prosecuted Mr. Leatherwood, and
therefore she had a conflict of interest in his case.
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denied his request for an evidentiary hearing and his motions to supplement the record.

The court issued a COA on the claim alleging a violation of procedural and substantive

due process but declined any other COAs.

Mr. Leatherwood filed a timely notice of appeal on his due process claim. He also

requests COAs on his judicial bias/conflict4 and cumulative error claims, and he has

moved to supplement the record on appeal with an affidavit from Judge Watson.

II. LEGAL BACKGROUND

A. Section 2241 Challenge to Revocation and Standard of Review

1. 28 U.S.C. § 2241 and Revocation

A habeas application under 28 U.S.C. § 2241 generally attacks the execution

of a sentence rather than its validity. See Straley v. Utah Bd. of Pardons, 582 F.3d

1208, 1213 (10th Cir. 2009) (“[State prisoner’s] § 2241 habeas petition can only

challenge the execution of his sentence, not the validity of his conviction and the

original sentence.”); Yellowbear v. Wyoming Att’y Gen., 525 F.3d 921, 924 (10th Cir.

2008) (“Section [] 2241 is a vehicle for [a state prisoner] . . . attacking the execution

of a sentence.” (citations omitted)). It challenges “the fact or duration of a prisoner’s

confinement and seeks the remedy of immediate release or a shortened period of

4
In his request for additional COAs, Mr. Leatherwood combines his
allegations of judicial bias (because Judge Bass-LeSure believed his initial sentence
was too lenient) and judicial conflict (because Judge Bass-LeSure was ultimately
under investigation) into one claim, which he labels “judicial conflict.” Aplt. Br.
at 55. We refer to it as his “judicial bias/conflict” claim.

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confinement.” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997)

(quotations omitted).

A state prisoner’s challenge to the revocation of a suspended sentence is

properly brought under § 2241 based on our circuit precedent. Montez v. McKinna,

208 F.3d 862, 865 (10th Cir. 2000) (stating that a habeas application challenging

where a state sentence will be served “seems to fit better under the rubric of

§ 2241”); Stoltz v. Sanders, Nos. 00-6188 & 00-6288, 242 F.3d 390, 2000 WL

1730894, at *1 (10th Cir. 2000) (unpublished table decision) (“To the extent

[petitioner] is challenging the revocation of his [suspended] sentence, we construe his

petition as filed under 28 U.S.C. § 2241 because it challenges the execution of his

sentence, rather than its validity.”).5 By contrast, a state prisoner’s federal habeas

challenge to the validity of an underlying conviction or sentence must typically be

brought under § 2254. Montez, 208 F.3d at 865.

Mr. Leatherwood challenges the execution of his sentence—whether he will

serve 15 years in prison or as a suspended sentence. See id. He does not challenge

the validity of his rape conviction or his sentence of six concurrent 20-year terms.

He therefore properly brought a § 2241 habeas application.6

5
Although not precedential, we find the reasoning of the unpublished cases
cited in this opinion instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are
not precedential, but may be cited for their persuasive value.”); see also Fed. R. App.
P. 32.1.
6
The majority of our sibling circuits have held that a state prisoner’s collateral
challenge to the execution of a sentence should be brought under § 2254. See In re
Wright, 826 F.3d 774, 778 (4th Cir. 2016) (collecting cases); see also Ochoa v.
-7-
2. Standard of Review

“When reviewing the denial of a habeas petition under § 2241, we review the

district court’s legal conclusions de novo and accept its factual findings unless

clearly erroneous.” al-Marri v. Davis, 714 F.3d 1183, 1186 (10th Cir. 2013). In

doing so, we employ the same deference the district court must apply in reviewing

the state proceedings. Curtis v. Chester, 626 F.3d 540, 544 (10th Cir. 2010).

The standard of federal habeas review of state court decisions depends on

which habeas statute applies. For § 2254 habeas applications, relief may not be

granted unless the state court’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding,” id. § 2254(d)(2). Congress imposed these standards when it

Workman, 669 F.3d 1130, 1148 (10th Cir. 2012) (Hartz, J., concurring) (questioning,
in light of Panetti v. Quarterman, 551 U.S. 930 (2007), whether a state prisoner’s
challenge to execution of sentence should be under § 2241 rather than § 2254).
But “[w]e are bound by the precedent of prior panels absent en banc
reconsideration or a superseding contrary decision by the Supreme Court.” Barnes v.
United States, 776 F.3d 1134, 1147 (10th Cir. 2015) (quotations and emphasis
omitted) (refusing to overrule our precedent because the Supreme Court authority
was not “so indisputable and pellucid . . . that it constitutes intervening (i.e.,
superseding) law that would permit us” to reach a contrary holding “without en banc
consideration”); see Auraria Student Hous. at the Regency, LLC v. Campus Vill.
Apartments, LLC, 843 F.3d 1225, 1242 (10th Cir. 2016) (concluding the Supreme
Court had “adopted reasoning that require[d] a different result” from this court’s
precedent). Panetti involved a § 2254 habeas petition. 551 U.S. at 937. It neither
mentioned § 2241 applications nor does its reasoning “indisputabl[y] and
pellucid[ly]” require a departure from Montez. See Barnes, 776 F.3d at 1147. We
cannot say that Panetti questions our precedent to the extent it constitutes a
superseding decision.
-8-
enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”), and it

intended they be “difficult to meet.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

The standard of review for a § 2241 application is less demanding. In Walck v.

Edmondson, we stated, “The deferential standard of review contained within § 2254

is . . . only properly invoked when an individual in state custody collaterally attacks

the validity of a state conviction and/or sentence.” 472 F.3d 1227, 1234 (10th Cir.

2007). Accordingly, “we review habeas claims made pursuant to § 2241 . . . de

novo.” Id. at 1235; see also Phillips v. Court of Common Pleas, Hamilton Cty., 668

F.3d 804, 810 (6th Cir. 2012) (“[H]abeas petitions governed by § 2241 are not

subject to the heightened standards contained in § 2254(d)”); Martinez v. Caldwell,

644 F.3d 238, 242 (5th Cir. 2011) (“The deferential standard afforded to state court

decisions, which is specifically articulated in § 2254, is not included in the text of

§ 2241.”). Thus, we review the state court’s denial of Mr. Leatherwood’s § 2241

application de novo. See Walck, 472 F.3d at 1235.

B. Scope of Habeas Review: State Law and Federal Due Process

Federal habeas relief is not available to correct state law errors. Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991); Eizember v. Trammell, 803 F.3d 1129, 1145

(10th Cir. 2015). “[T]his court’s role on collateral review isn’t to second-guess state

courts about the application of their own laws but to vindicate federal rights.”

Eizember, 803 F.3d at 1145. A prisoner may seek relief, however, if a state law

decision is so fundamentally unfair that it implicates federal due process. Estelle,

502 U.S. at 67-68, 75; Hicks v. City of Watonga, 942 F.3d 737, 746 n.4 (10th Cir.

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1991). “[W]hether a state has afforded sufficient process to protect a [federal]

constitutional right is not a question of state law.” Guttman v. Khalsa, 669 F.3d

1101, 1115 (10th Cir. 2012) (quotations omitted).

A habeas applicant cannot transform a state law claim into a federal one

merely by attaching a due process label. See Gryger v. Burke, 334 U.S. 728, 731

(1948). Otherwise, “every erroneous decision by a state court on state law would

come [to federal court] as a federal constitutional question.” Id.; see Onyx Props.

LLC v. Bd. of Cty. Comm’rs, 838 F.3d 1039, 1044 (10th Cir. 2016); Johnson v.

Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997) (“Errors of state law cannot be

repackaged as federal errors simply by citing the Due Process Clause.”). Rather, the

habeas applicant should “include reference to a specific federal constitutional

guarantee, as well as a statement of the facts that entitle [him] to relief.” Gray v.

Netherland, 518 U.S. 152, 162-63 (1996); Perruquet v. Briley, 390 F.3d 505, 512

(7th Cir. 2004) (explaining the applicant must “draw[] enough of a connection”

between the right to due process and the sentencing court’s alleged errors “to render

his claim cognizable on habeas review”). Examples of state law decisions that may

violate due process include erroneous jury instructions7 and improper admission or

7
See, e.g., Turrentine v. Mullin, 390 F.3d 1181, 1191-94 (10th. Cir. 2004)
(federal habeas relief granted where jury instruction error rose to the level of federal
due process violation); see also Jackson v. Edwards, 404 F.3d 612, 624-28 (2d Cir.
2005) (same); Sanders v. Cotton, 398 F.3d 572, 583 (7th Cir. 2005) (same);
Cockerham v. Cain, 283 F.3d 657, 662-63 (5th Cir. 2002) (same).

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exclusion of evidence.8 See Brian R. Means, Postconviction Remedies, Ch. 41 (2016

ed.).

The State contends that Mr. Leatherwood raises only a question of state law:

whether his suspended sentence could be revoked under Oklahoma law for a

violation of Rule 17 while incarcerated. But Mr. Leatherwood’s habeas application

alleged: (1) “Rule 17 failed to give fair warning that [he] could violate the rule” even

though he was incarcerated, Dist. Ct. Doc. 2 at 48; and (2) the district court’s

enforcement of a probation condition (i.e., Rule 17) during his incarceration

“arbitrarily deprived him of his liberty and constituted a denial of his right to

substantive due process,” id. at 28. The foregoing arguments go beyond labeling a

state claim as a due process claim by referencing the “specific federal constitutional

guarantee” and the “statement of the facts” that Mr. Leatherwood contends warrant

relief. See Gray, 518 U.S. at 162-63. We thus proceed to consider the merits of his

claim.

C. Due Process Protections for Revocation of a Suspended Sentence

Mr. Leatherwood’s due process claim on appeal includes his (1) procedural

due process claim alleging lack of fair warning, and (2) substantive due process claim

8
See, e.g., Spears v. Mullin, 343 F.3d 1215, 1227-28 (10th Cir. 2003)
(granting habeas relief on the ground that admission of photographs of victims so
infected the sentencing proceeding with unfairness as to render the imposition of the
death penalty a due process violation); see also Perruquet, 390 F.3d at 512
(petitioner drew sufficient connection between his right to due process and the trial
court’s alleged evidentiary and instructional errors to render his claim cognizable on
habeas review).
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alleging arbitrary government action. We provide legal background information

below.

1. Procedural Due Process
Procedural due process protections apply to the revocation of a suspended

sentence. See United States v. Ferguson, 624 F.2d 81, 83 (9th Cir. 1980) (holding

revocation of suspended sentence violated due process when court refused to

consider mitigating circumstances); Bumgarner v. Middleton, No. 94-7003, 54 F.3d

787, 1995 WL 275718, *1 (10th Cir. 1995) (unpublished table case) (“Requirements

of due process with regard to revocation of a suspended sentence are . . . not as broad

as those provided a defendant in a criminal trial.”). These protections are the same as

those afforded to revocation of probation, parole, or supervised release. See Gagnon

v. Scarpelli, 411 U.S. 778, 786 (1973); United States v. Gallo, 20 F.3d 7, 11 (1st Cir.

1994); Bumgarner, 1995 WL 275718, at *1.9 We therefore rely on cases about

revocation of probation, parole, and supervised release in analyzing the due process

issue here.

One of the due process protections is the void-for-vagueness doctrine. “It is a

basic principle of due process that an enactment is void for vagueness if its

9
See also Harper v. Young, 64 F.3d 563 (10th Cir. 1995). In Harper, this
court analyzed an Oklahoma pre-parole program that released prisoners from
confinement and allowed them to live and work in society under strict supervision.
Id. at 564. We held that “program participation [wa]s sufficiently similar to parole or
probation to merit protection by the Due Process Clause itself,” id. at 565, identifying
the “dispositive characteristic” indicating the attachment of due process as when
“release from incarceration” is at stake, id. at 566.

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prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108

(1972) (explaining that “laws [must] give [a] person of ordinary intelligence a

reasonable opportunity to know what is prohibited, so that he may act accordingly”).

Courts—including this one—have applied this doctrine in the revocation context.

See, e.g., United States v. Muñoz, 812 F.3d 809, 818 (10th Cir. 2016) (supervised

release condition); United States v. Jordan, 890 F.2d 247, 255 (10th Cir. 1989)

(probation condition).10

Mr. Leatherwood labels his claim as a vagueness challenge, see Aplt. Br. at 37

(“[Rule 17] w[as] unconstitutionally vague”), but he does not argue that the language

of Rule 17 itself is impermissibly vague. Instead, he argues he lacked fair warning—

from any source—about the circumstances under which Rule 17 could be enforced.

See id. at 39. Courts have recognized such a due process fair warning argument in

the revocation context. See, e.g., Gallo, 20 F.3d at 11.

In Gallo, a probationer claimed he lacked fair warning that he could violate his

probation by refusing to submit to inpatient medical care when his probation

condition required him to submit to care “upon his release from i[n]patient

hospitalization[.]” Id. at 9, 12 (emphasis added). The First Circuit found the

probationer had adequate warning based on, among other things, the probation

10
See also Farrell v. Burke, 449 F.3d 470, 476 (2d Cir. 2006) (applying
vagueness doctrine in case involving revocation due to parole violation); United
States v. Loy, 237 F.3d 251, 262 (3d Cir. 2001) (explaining the “same [vagueness]
principles” that apply to statutes “apply to a condition of supervised release”); Green
v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993) (holding probation condition was not “so
vague as to deprive [defendant] of due process”).
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officer’s and the court’s “repeated[] expla[nations]” that the probationer’s conduct

risked revocation. Id. at 13. Similarly, in Green v. Abrams, the Second Circuit

rejected a fair warning challenge to a probation condition, holding that although the

written probation condition “did not designate a particular time for payment,” the

probation officer’s “constant urging to pay the fine should have put [the defendant]

on notice” that the probation condition required “immediate attempts at payment.”

984 F.2d 41, 46-47 (2d Cir. 1993).

Courts generally look to the list of probation conditions to determine whether a

defendant had adequate notice of proscribed activities. See, e.g., United States v.

Grant, 816 F.2d 440, 442 (9th Cir. 1987). “Of course, where the warning is not

contained in a formal [probation] condition, the record must be closely scrutinized to

determine whether the defendant did, in fact, receive the requisite warning.” Id.

(quotations omitted). In this regard, “the inquiry into fair warning is not necessarily

confined to the four corners of the probation order.” Gallo, 20 F.3d at 13. “The

meaning of a probation order may be illuminated by the judge’s statements . . . or

other events, any or all of which may . . . aid[] the court to determine whether a

probationer has been forewarned . . . .” Id.

2. Substantive Due Process
As relevant to Mr. Leatherwood’s arguments on appeal, the Due Process

Clause also imposes “substantive limits on the revocation of [] conditional liberty

. . . .” Black v. Romano, 471 U.S. 606, 610 (1985); see, e.g., Bearden v. Georgia,

461 U.S. 660, 666 (1983) (recognizing substantive limit on the automatic revocation

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of probation where an indigent defendant is unable to pay a fine); Douglas v. Buder,

412 U.S. 430, 432 (1973) (recognizing substantive limit on revocation of probation

absent evidence the probationer violated probation). A revocation violates due

process when it is “fundamentally unfair or arbitrary.” Bearden, 461 U.S. at 666; see

Cummings v. Sirmons, 506 F.3d 1211, 1237 (10th Cir. 2007) (“[I]n rare

circumstances, a determination of state law can be so arbitrary or capricious as to

constitute an independent due process violation.” (alterations and quotations

omitted)). “[T]he deprivation occasioned by the state’s failure to follow its own law

must be arbitrary in the constitutional sense; that is, it must shock the judicial

conscience.” Aycox v. Lytle, 196 F.3d 1174, 1179-80 (10th Cir. 1999) (quotations

omitted).11

D. Analysis

As the following analysis shows, Mr. Leatherwood’s procedural and

substantive due process arguments fail for much the same reasons.

1. Mr. Leatherwood’s Procedural Due Process Argument Fails
Mr. Leatherwood’s procedural due process/fair warning argument does not

challenge the content of Rule 17 but rather its scope. Under the section of his

opening brief titled “The Special Probation Conditions . . . were unconstitutionally

11
Substantive due process protects an individual’s fundamental liberty
interests and also guards against the arbitrary exercise of governmental power that
shocks the conscience. Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10th Cir.
2008); see Chavez v. Martinez, 538 U.S. 760, 787 (2003) (Stevens, J., concurring in
part and dissenting in part). Mr. Leatherwood’s argument appears limited to the
latter category.

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vague,” he contends Rule 17 did not provide fair warning that his suspended sentence

could be revoked for violating the rule when he was incarcerated. Aplt. Br. at 37-38.

He further argues that no other source—not his probation documents, the revocation

hearing, Oklahoma law, or otherwise—provided fair warning. Id. at 39 (contending

“Mr. Leatherwood received no notice whatsoever from any source that [Rule 17]

would apply while in prison”).12 Because Mr. Leatherwood had ample warning, his

procedural due process claim fails.

a. Mr. Leatherwood had fair warning that Rule 17 applied while he was in prison
Mr. Leatherwood had fair warning regarding the consequences of engaging in

a relationship with Ms. Wood based on Judge Watson’s statements during the

January 8, 2010 revocation hearing. See Maynard v. Cartwright, 486 U.S. 356, 361

(1988) (“Objections to vagueness under the Due Process Clause rest on the lack of

notice, and hence may be overcome in any specific case where reasonable persons

12
Mr. Leatherwood argues Rule 17 is void for vagueness because it conflicts
with another rule in his Special Probation Conditions. We fail to see how any
conflict would render Rule 17 itself unconstitutionally vague. He does not argue that
Rule 17 itself is vague such that a person of ordinary intelligence would not know
what conduct was prohibited by the condition.
He also states that Rule 17 is “constitutionally overly-broad,” Aplt. Br. at 50,
but he fails to establish the overbreadth doctrine applies in this context, see Members
of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984)
(“[T]here must be a realistic danger that the statute itself will significantly
compromise recognized First Amendment protections of parties not before the Court
for it to be facially challenged on overbreadth grounds.”); Faustin v. City & Cty. of
Denver, Colorado, 268 F.3d 942, 948-49 (10th Cir. 2001). Even if the overbreadth
doctrine would apply here, Mr. Leatherwood’s argument—to the extent he makes
one—is inadequately briefed. See United States v. Cooper, 654 F.3d 1104, 1128
(10th Cir. 2011) (“It is well-settled that arguments inadequately briefed in the
opening brief are waived.” (quotations omitted)).
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would know that their conduct is at risk.”); Gallo, 20 F.3d at 12 (“[T]he fair warning

doctrine does not provide a safe harbor for probationers who choose to ignore the

obvious.”).

The judge informed Mr. Leatherwood that continuing his relationship with Ms.

Wood while incarcerated could result in further revocation of his suspended sentence:

Good lawyering . . . convinced me [to impose the original
suspended sentence]. . . . And now they put you in jail and
you’re doing the same thing over there. . . . And you may not
even be a threat but the law says that as a sex offender you
cannot have a relationship with a person who has minor
children. . . . I gave you all the rope in the world and you
hung yourself with it.

ROA at 1616-17 (emphasis added). The judge told Mr. Leatherwood that he had been

“doing the same thing”—that is, “hav[ing] a relationship with a person who has minor

children”—after “they put [him] in jail” awaiting his revocation hearing. Id. at 1617.

These statements clearly informed Mr. Leatherwood that maintaining such a relationship

was prohibited even while he was incarcerated.

The following additional statements from Judge Watson to Mr. Leatherwood

reinforce this point:

 “You know, I can’t tell you how to live your life . . . . But it’s
the children and that Sex Offender Registration Act says you
can’t be around them. Now, that’s not going to change. That
is the rule.” Id. at 1616.

 “But if you’ve got some questions you better ask it now. And
I hope [Ms. Wood] gets it. I mean, she’s going to have to

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 abandon her children, completely abandon her children for
her to be with you.” Id. at 1618.13
At the second revocation hearing on August 3, 2010, Mr. Leatherwood’s

statements to Judge Bass-LeSure showed he had understood the potential

ramifications of his behavior yet chose to accept the risk and pursue the relationship:

 I’m not trying to make an excuse. I understand the Rule [17]
was in place. . . . However, at the s[a]me time I would ask
the Court to consider the fact that this was a relationship that I
was in well before I was ever sentenced . . . . When I was
sentenced on May 18th of 2009 I could not just stop being in
that relationship with the person that I was committed to for
my future. And obviously I made the decision, Your Honor
to do that. I take full responsibility[.] Id. at 1653-54.

 I would not do anything to intentionally or willfully violate
the conditions of my probation except for Number 17 and I
take responsibility for that. Id. at 1684.
These statements demonstrate that Mr. Leatherwood knew that Rule 17 “was

in place” when he was in prison, and he took “full responsibility” for violating it.

13
Judge Watson also stated:

Well, you need to go and see what happens to people who to go
the penitentiary. . . . And if that gets you on the right path, so be
it. If it doesn’t, you’ll get out and I’ve got 15 more years to send
you back when you don’t follow the rules.

ROA at 1617-18. Although this statement could be interpreted to say that further
revocation of the suspended sentence could occur only after Mr. Leatherwood’s
completion of his five years in prison, the specific passages quoted above gave
warning that violating the “rule[s]” even while he is “in jail” would result in another
revocation.

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Indeed, he said he would “intentionally” and “willfully violate” Rule 17 to maintain

his relationship with Ms. Wood.14

Even if his probation documents did not expressly state that Rule 17 could be

enforced while Mr. Leatherwood was in prison, Judge Watson’s statements about the

impropriety of the relationship and his imposition of the five-year revocation should

have put Mr. Leatherwood on notice. See Gallo, 20 F.3d at 13; Green, 984 F.2d at

46-47. Yet Mr. Leatherwood continued the relationship with Ms. Wood after he was

sent to prison, and he admitted at his second revocation hearing that he knew about

and was responsible for violating Rule 17 while in prison. The 15-year revocation

did not violate his due process right to fair warning.

b. Oklahoma statute did not render revocation unforeseeable
Mr. Leatherwood argues the state court imposed an “unforeseeable

application” of the probation statute in violation of due process. Aplt. Br. at 37. By

revoking his suspended sentence for violation of a probation condition while

incarcerated, the court, he says, effectively held that “incarceration was the

equivalent of probation.” Id. He points out that the Oklahoma code defines

14
Ms. Wood’s testimony at Mr. Leatherwood’s January 8, 2010 revocation
hearing provides further support that Mr. Leatherwood had fair warning. She
testified that she had attended Mr. Leatherwood’s sentencing, had dated him
afterward, and that “currently he’s in jail but I would say that we are in a
relationship.” ROA at 425. When asked why she “would continue to be in a dating
relationship with a man that you know this judge has ordered that that shouldn’t be
happening,” she responded that she thought Rule 17 barred Mr. Leatherwood from
entering into new relationships, not continuing existing ones, like theirs. Id. at 427-
28. After reading Rule 17 aloud, however, Ms. Wood acknowledged that it means
she “can’t date him. Period.” Id. at 428. This exchange provides further evidence
that Mr. Leatherwood, who was present for her testimony, had fair warning.
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probation as “a procedure by which a defendant found guilty of a crime . . . is

released by the court subject to conditions imposed by the court and subject to

supervision of the Department of Corrections.” Okla. Stat. tit. 22 § 991a(E)

(emphasis added); see Aplt. Br. at 32-33. Because he was imprisoned, he argues, he

could not be on probation, and thus conditions of probation like Rule 17 could not

apply to him. In light of this statute, it was unforeseeable, he contends, that the court

would enforce a Rule 17 violation during his incarceration.

To the extent the foregoing presents a potentially viable due process argument, it

lacks merit. The Oklahoma probation statute does not tell the whole story. As noted

previously, after conviction, a defendant’s sentence can include probation, a suspended

sentence, or both. Okla. Stat. tit. 22 § 991a(A)(1). In Mr. Leatherwood’s case, his

revocation concerned his suspended sentence, not his probation. He has pointed to no

Oklahoma law providing that a suspended sentence may not be revoked for violation of a

probation condition irrespective of whether the violation occurred when incarcerated.

And even if Oklahoma law is not clear on this point, Judge Watson gave him fair warning

that having a relationship with Ms. Wood while incarcerated could result in revocation of

his suspended sentence.

c. Oklahoma case law supports revocation
The parties dispute the impact of two Oklahoma cases on the due process

issue. The State relies on Crowels v. State, 675 P.2d 451 (Okla. Crim. App. 1984),

and Demry v. State, 986 P.2d 1145 (Okla. Crim. App. 1999), to argue that the court

could revoke Mr. Leatherwood’s suspended sentence even while he was incarcerated.

- 20 -
Aplee. Br. at 16-17. In Crowels, the OCCA held a suspended sentence “imposes the

inherent condition that the defendant should not commit any felony during the period

of that sentence.” 675 P.2d at 453 (affirming the revocation of an inmate’s

suspended sentence after he committed a felony while incarcerated). In Demry, the

OCCA held “a suspended sentence for a misdemeanor contains the inherent condition

that the person shall not commit the same misdemeanor during the period of

suspension.” 986 P.2d at 1148.

The State concedes Oklahoma courts have never squarely held that a probation

rule can be applicable to someone who is incarcerated, see Oral Arg. 16:55-17:08,

but it argues that these cases placed Mr. Leatherwood on notice that he was subject to

revocation for violating Rule 17 while incarcerated, Aplee. Br. at 19. Mr.

Leatherwood argues the cases “are wholly distinguishable” from his case. Aplt. Br.

at 26.

Although the circumstances of Mr. Leatherwood’s revocation were different

from those in either Crowels or Demry, his revocation was at least a plausible

extension of the general principle from those cases that a suspended sentence can be

revoked for acts committed during incarceration. And as with the probation statute,

Judge Watson’s warnings cured any ambiguity in the case law as far as fair warning

is concerned.

2. Mr. Leatherwood’s Substantive Due Process Argument Fails
Mr. Leatherwood argues the court’s “arbitrary disregard of Oklahoma

sentencing law . . . is shocking to the judicial conscience,” id. at 31, a substantive due

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process claim.15 But it was not fundamentally unfair or arbitrary for the State to

revoke his suspended sentence for violating Rule 17 during incarceration.

Mr. Leatherwood’s argument fails based on our previous discussion about the

Oklahoma probation statute and the Oklahoma cases. If the statute and the cases do not

support Mr. Leatherwood’s argument that he lacked fair warning, it follows that the

revocation of his suspended sentence for conduct while in prison cannot be deemed

arbitrary, much less fundamentally unfair. The district court, in denying his § 2241

application, said it well: “[E]ven if the state court’s interpretation and application of state

law was incorrect, it was not obviously so or so egregious as to shock the judicial

conscience in the circumstances existing here.” Leatherwood v. Allbaugh, No. CIV-13-

1149-HE, 2016 WL 4006029, at *3 (W.D. Okla. July 25, 2016). This is particularly

true in light of Oklahoma law providing that a sentencing court may order the

defendant “at the time of sentencing or at any time during the suspended sentence to

do one or more” enumerated actions, Okla. Stat. tit. 22 § 991a(A)(1)(a)-(gg), as well

as comply with “any other provision specifically ordered by the court,” id.

§ 991a(A)(1)(hh).

Mr. Leatherwood already had received a five-year revocation for continuing his

relationship with Ms. Wood, including while he was in jail. The ensuing 15-year

15
Mr. Leatherwood argues that “even if Judge Watson had told [him] on
January 8, 2010, that the probation rules were in effect even while he was in prison,
such a statement would have been incorrect because . . . rules of probation do not
apply during imprisonment according to Oklahoma law.” Aplt. Br. at 31. In other
words, he argues that no amount of warning could overcome the arbitrariness and
fundamental unfairness of his 15-year revocation.
- 22 -
revocation for continuing the relationship was a heavy blow, but Mr. Leatherwood does

not argue an Eighth Amendment violation and, as explained above, his substantive due

process argument fails.16

* * * *

We affirm the district court’s denial of relief on Mr. Leatherwood’s § 2241

habeas application.

E. Certificates of Appealability

Mr. Leatherwood seeks COAs on the issues of (1) judicial bias/conflict and

(2) cumulative error. We deny these requests.

1. COA and Standard of Review

A COA is a jurisdictional prerequisite to this court’s review of a habeas

application. 28 U.S.C. § 2253(c)(1)(A); Dulworth v. Jones, 496 F.3d 1133, 1135

(10th Cir. 2007). To receive a COA, the prisoner must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Clark v. Oklahoma,

468 F.3d 711, 713 (10th Cir. 2006). The COA inquiry “is not coextensive with a

merits analysis.” Buck v. Davis, 137 S. Ct. 759, 773 (2017). “At the COA stage, the

only question is whether the applicant has shown that ‘jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that jurists

16
Mr. Leatherwood does not raise or adequately address any other substantive
due process concerns that this case or Rule 17 may implicate.
- 23 -
could conclude the issues presented are adequate to deserve encouragement to

proceed further.’” Id. (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).17

2. Judicial Bias/Conflict

Mr. Leatherwood claims he was denied his due process right to an impartial

tribunal. He attempts to combine separate claims of judicial bias and judicial conflict

into one claim. As to the judicial bias part of the claim, due process requires a

“neutral and detached hearing body.” Gagnon, 411 U.S. at 786 (quotations omitted).

Judicial rulings alone are almost always insufficient to establish bias, see Liteky v.

United States, 510 U.S. 540, 555 (1994), as are mere “speculation, beliefs,

conclusions, innuendo, suspicion, opinion, and similar non-factual matters,” United

States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993).

Mr. Leatherwood argues Judge Bass-LeSure was biased because she believed

the initial sentence imposed by Judge Watson was too lenient. During the second

revocation hearing, Mr. Leatherwood said that “[t]he State was clearly not happy

with the sentence that I received from Judge Watson.” ROA at 595. Judge Bass-

LeSure replied, “I agree.” Id. This comment, he argues, shows bias. But Mr.

Leatherwood offers nothing to support his claim other than Judge Bass-LeSure’s

17
In Henderson v. Scott, this court considered whether to grant a COA for a
habeas application that should “probably” be considered under § 2241. 260 F.3d
1213, 1214 (10th Cir. 2001). We concluded the applicant had not made the requisite
“substantial showing of the denial of a constitutional right.” Id. (quoting 28 U.S.C.
§ 2253(c)(2)). Although we suggested that some degree of deference should be
applied to the OCCA’s determination of federal constitutional issues, we did not cite
§ 2254(d) or engage in a § 2254(d) analysis. Applying some degree of deference to
the state court proceedings here would only strengthen the basis for our decision to
deny the requested COAs.
- 24 -
statement, which provides, at most, her opinion as to the appropriateness of Judge

Watson’s original sentence. It is not a valid basis for a claim of judicial bias. See

Liteky, 510 U.S. at 555; Cooley, 1 F.3d at 993-94. Reasonable jurists could not

debate the district court’s denial of this claim, and we thus deny COA.

As to judicial conflict, Mr. Leatherwood argues the same D.A.’s office that

was prosecuting his revocation was also investigating Judge Bass-LeSure, and she

thus would have been inclined to side with the D.A. who was prosecuting Mr.

Leatherwood and revoke Mr. Leatherwood’s suspended sentence. Mr.

Leatherwood’s conflict claim overstates the record evidence. The D.A.’s office

notified Judge Bass-LeSure about its investigation of her five months after she had

revoked the remaining 15 years of Mr. Leatherwood’s suspended sentence. Mr.

Leatherwood offers nothing beyond speculation that the judge was aware of the

D.A.’s investigation into her misconduct at the time of his second revocation hearing.

Nor does he offer any evidence that any such contemporary investigation may have

influenced her decision. The district court properly rejected this claim, and we again

deny a COA.

3. Cumulative Error

Mr. Leatherwood claims that even if none of his alleged errors in isolation

justify relief, “the combined effect of the errors deprived him of due process and a

fundamentally fair proceeding.” Aplt. Br. at 59. Mr. Leatherwood lacks the

minimum of two errors necessary to sustain a cumulative error claim. Hanson v.

- 25 -
Sherrod, 797 F.3d 810, 852 (10th Cir. 2015); Stouffer v. Trammell, 738 F.3d 1205,

1229 (10th Cir. 2013). We therefore decline to issue a COA.

F. Motion to Supplement

Mr. Leatherwood asks us to supplement the record with an affidavit from

Judge Watson. We will not consider material outside the record that was not before

the district court unless it is necessary to “truly disclose[] what occurred in the

district court.” Fed. R. App. P. 10(e)(1); United States v. Kennedy, 225 F.3d 1187,

1192 (10th Cir. 2000) (noting exceptions to Rule 10(e) are “rare”). The affidavit

does not satisfy this rule. We therefore deny the motion to supplement.

III. CONCLUSION

We affirm the district court’s denial of the application for habeas relief. We

also deny the requests for additional COAs and the motion to supplement the record.

- 26 -
16-6251, Leatherwood v. Allbaugh

HARTZ, Circuit Judge, concurring:

I join Judge Matheson’s opinion except in one regard, which does not affect the

outcome. In my view, Mr. Leatherwood’s challenge to the district court’s sentence on

revocation of his suspended sentence should be treated as arising under 28 U.S.C. § 2254,

rather than 28 U.S.C. § 2241. This could make a difference in some future case because

§ 2254 requires great deference to the state court’s decision.

Absent extraordinary circumstances, § 2254 is the exclusive means for “a person

in custody pursuant to the judgment of a State court” to challenge in federal district court

the constitutionality of the custody. Without any textual support for our position, this

circuit has carved out an exception for challenges (which can be made under § 2241) to

“execution” of the sentence, as opposed to challenges to the validity of the sentence. As

stated in Judge Matheson’s opinion, no other circuit has recognized such an exception.

I agree that we are bound by circuit precedent. But when our precedent is in error,

there is no reason to expand it unnecessarily. And we should try to narrow our

differences with the ten other regional circuits to the extent possible. In my view, our

precedent hardly requires us to say that this case involves execution rather than validity

of a sentence. We have not defined what “execution” of the sentence is. And it is no

stretch to say that what Mr. Leatherwood is doing here is challenging the validity of the

sentence imposed on revocation of the suspended sentence.